887 F.

2d 1528

UNITED STATES of America, Plaintiff-Appellee,

v.
George NAPPER, in his official capacity as Commissioner of
Public Safety of the City of Atlanta, the City of
Atlanta, Defendants-Appellees,
Luther Alverson, etc. et al., Defendants,
The Atlanta Journal and the Atlanta Constitution, Glenn
McCutchen, individually and as their managing editor,
Georgia Television Company, d/b/a WSB-TV, and David
Lippoff,
individually and as its News Director, Intervenors-Appellants.
No. 88-8747.

United States Court of Appeals,

Eleventh Circuit.
Nov. 13, 1989.
Rehearing and Rehearing In Banc Denied Dec. 29, 1989.

Terence B. Adamson, Dow, Lohnes & Albertson, James Alexander

Demetry, and Peter Crane Canfield, Atlanta, Ga., for intervenorsappellants.
Sharon Douglas Stokes, Asst. U.S. Atty., Atlanta, Ga., Jerome L. Epstein,
U.S. Dept. of Justice, Civ. Div., Leonard Schaitman, and Edward R.
Cohen, Appellate Staff, Civ.Div., Dept. of Justice, Washington, D.C., for
plaintiff-appellee.
Overtis Hicks Brantley, City of Atlanta Law Dept., Atlanta, Ga., for
George Napper and City of Atlanta.
Appeal from the United States District Court of the Northern District of
Georgia.
Before JOHNSON, Circuit Judge, and RONEY,* Senior Circuit Judge,
and YOUNG**, Senior District Judge.

PER CURIAM:

The Atlanta Journal, The Atlanta Constitution, Georgia Television Co., d/b/a
WSB-TV, and two individuals, appeal the denial of their motion to dismiss an
action initiated by the United States of America to recover certain Federal
Bureau of Investigation documents on loan to the City of Atlanta. We view this
as a simple case involving the right of the United States to obtain its own
documents loaned to a state agency, and affirm the order of Judge Richard C.
Freeman, which adequately rejects each contention made by the appellants.
United States v. Napper, 694 F.Supp. 897 (N.D.Ga.1988). The appellants are
intervenors in this litigation. Although they try to make it so, this case does not
involve the First Amendment, the Freedom of Information Act, or whether the
appellants have a right to see the documents or obtain the information in them
from the Federal Government.

The material facts, more fully set forth in the district court's opinion, are
undisputed. Between 1979 and 1981, the Federal Bureau of Investigation (FBI)
assisted the Atlanta Police Department in its investigation of a spate of murders
that came to be known as the "Atlanta Child Murder Cases." During this time,
the FBI provided the city's police department with documents relating to the
investigation. Most of the documents furnished to the city were marked as
follows:

3
This
document contains neither recommendations nor conclusions of the FBI. It is
the property of the FBI and is loaned to your agency; it and its contents are not to be
distributed outside your agency.
4

In January 1987, several members of the media, including appellantintervenors, sued the City under the Georgia Open Records Act, O.C.G.A. Sec.
50-18-70, et seq., seeking access to the police department's investigative files
concerning the Atlanta Child Murders. As a result of this action, the state trial
court released a substantial portion of the loaned files to the media plaintiffs.
See Napper v. Georgia Television Co., 257 Ga. 156, 356 S.E.2d 640 (1987).
The released files were also made available to other members of the public in
the City's public reading room.

As a result of a series of articles in The Atlanta Journal and The Atlanta

Constitution based on the documents released in the state court action, the FBI
learned that copies of approximately 2,300 of its documents had been released
to the media and the public, contrary to the condition upon which they had been
loaned to the State. The state trial court was considering further the release of

additional documents from the police files, thirty-five pages of which were FBI
documents, which had been submitted to it in camera.
6

In September 1987, the United States moved to intervene in the state action. Its
motion was denied. In November 1987, the FBI formally requested in writing
that the Atlanta police return the documents which had been lent to the City
during the Atlanta Child Murder investigation. After the City refused, the
United States initiated this suit to recover the documents, which are presently in
the possession of the City of Atlanta. In March 1988, the district court granted
the intervenors-appellants' motion to intervene "for the sole purpose of moving
for dismissal of the present action." The district court also granted the media
intervenors-appellants thirty days to respond to the United States' motion for
summary judgment. The court granted the Government's motion for summary
judgment, denied intervenors-appellants' motion to dismiss and ordered
defendants to return the disputed documents to the United States within thirty
days of the entry of its order. United States v. Napper, 694 F.Supp. at 902.

Appellants characterize the district court's decision as an unprecedented grant of

authority to the Attorney General to affirmatively deny the public access to
federal documents when a state court had ordered the disclosure of such
documents pursuant to a state Open Records Act. This position emotionalizes
this case, but misses the point of the litigation. This is simply a case in which
the Government seeks to retrieve documents which it owns and which the City
of Atlanta possesses, has no right to disseminate, and refuses to return to the
FBI.

The appellants do not dispute that the documents in question belong to the FBI.
The district court was correct in determining that a dispute exists over
ownership and possession of the documents because the City refused to return
the documents the federal Government claims. See Kentucky v. Indiana, 281
U.S. 163, 50 S.Ct. 275, 74 L.Ed. 784 (1930). Contrary to appellants' argument,
the United States has authority to bring suit to enforce its contractual and
property rights in federal court. See United States v. California, 332 U.S. 19, 67
S.Ct. 1658, 91 L.Ed. 1889 (1947); Cotton v. United States, 52 U.S. (11 How.)
229, 231, 13 L.Ed. 675 (1851).

The district court correctly refused to abstain from hearing this case, properly
finding that the United States has no other forum in which to claim its interest
in the documents, having been denied permission to intervene in the state court
action. The United States does not have to rely on the state court defendants to
adequately assert its interests.

10

Curiously, the intervenors argue the United States lacked standing to bring this
action to retrieve documents which allegedly belong to it. Although the district
court allowed intervention, it is difficult to find a base for the appellants'
standing in the district court or on appeal. The Government has not sought from
intervenors copies of the already released documents, nor does it attempt in this
litigation to suppress information already made public. The fact that some
documents have already been disclosed does not affect the Government's right
to retrieve the documents which are the subject of this litigation.

11

We understand, of course, as a practical matter, that once the documents are

returned to the United States, the appellants may have more difficulty in
obtaining them or the information in them. But the appellants and this Court
cannot find a legal base upon which to posit that practical interest.

12

As did the district court, we make no determination at all as to whether these

documents could be made available for disclosure to the public in a proceeding
under the Freedom of Information Act or any other theory that a plaintiff might
assert against the rightful owner of them.

13

AFFIRMED.
JOHNSON, Circuit Judge, concurring specially:

14

Although I concur with the majority in its holding that the disputed documents
should be returned to the FBI, I write separately for two reasons. First, I am
concerned that the majority reached the merits of this appeal unnecessarily.
Second, in the event that the majority correctly reached the merits, it failed to
address one claim made by the appellants.

A. BACKGROUND
15

A brief explanation of some pertinent procedural facts may be in order. When

appellants filed their original state court action against Commissioner of Public
Safety George Napper and the City of Atlanta, the United States was not
permitted to intervene. After the state court ordered the City to release the
disputed documents to the public, the United States filed suit in federal court
against Napper, the City, the state court judge who ordered the documents
released, and the state of Georgia. The complaint requested in part that (1) the
documents loaned to the City by the FBI be declared United States records
under 28 U.S.C.A. Sec. 534,1 not subject to O.C.G.A. Sec. 50-18-70;2 and (2)
the documents be returned to the government pursuant to 28 U.S.C.A. Sec.

534(b). As the majority notes, although the appellants had possession of the
disputed documents at this time, the government never made the appellants a
party to this action, never attempted to recover any documents from the
appellants at any time, and never attempted to suppress information already
made public.
16

On February 18, 1988, the appellants filed a motion to intervene "for the sole
purpose of dismissing" the government's claims. The appellants argued that the
district court lacked jurisdiction over the government claims. The government
moved for summary judgment based on 28 U.S.C.A. Sec. 534(b). On March
17, the district court granted the appellants' motion to intervene.

17

The district court found the appellants' challenges to jurisdiction to be without

merit and, on August 31, 1988, denied the appellants' motion for dismissal. In
the same order, the district court granted the government's motion for summary
judgment under 28 U.S.C.A. Sec. 534. An initial judgment docketed on
September 3, 1988, ordered "defendants" Napper, the City, the state judge, and
the appellants to return the disputed documents to the government and pay the
government its costs. In a second order issued November 10, 1988, and
docketed November 14, the district judge explained that the September 3, 1988
order "d[id] not accurately reflect the directions of the court as expressed in its
order of August 31, 1988." The court ordered the clerk to amend the judgment
to delete the state judge, who had been terminated as a defendant, and to delete
the appellants, "against whom the plaintiff sought no relief."3

18

The appellants had filed notice of appeal with this Court on September 30,
1988. The appeal was docketed on October 11, 1988. Consequently, when the
district court ordered the clerk to amend the clerical error on November 10, the
suit had already been under the jurisdiction of this Court for one month, and the
district court judge had no authority to amend the judgment without petitioning
this Court. Fed.R.Civ.P. 60(a). For this reason, the September 3, 1988 judgment
stood against the appellants at the time of this appeal.

B. STANDING
19

1. Intervention in the District Court Action

20

The district court granted the appellants' application to intervene for the sole
purpose of seeking dismissal of the government's suit. The court did not specify
whether it granted that application as intervention as of right under
Fed.R.Civ.P. 24(a) or as permissive intervention under Fed.R.Civ.P. 24(b).4

Regardless of whether the intervention was as of right or permissive, however,

the appellants had to have standing in order to intervene. Any plaintiff in
federal court must demonstrate (1) that he has a personal stake in the outcome
of the controversy and (2) that he has "suffered some actual or threatened injury
as a result of the putatively illegal conduct of the defendants and that the injury
can be fairly traced to the challenged conduct and is likely to be redressed by a
favorable decision." Chiles v. Thornburgh, 865 F.2d 1197, 1204 (11th
Cir.1989) (citing Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 703, 7
L.Ed.2d 663 (1962) and Valley Forge Christian College v. Americans United
for Separation of Church and State, 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70
L.Ed.2d 700 (1982)). A party seeking to intervene in an action "must
demonstrate a 'direct, substantial, legally protectable interest in the proceeding'
before that party will be granted intervenor status." Howard v. McLucas, 871
F.2d 1000, 1004 (11th Cir.1989) (citing Athens Lumber Co., Inc. v. Federal
Election Commission, 690 F.2d 1364, 1366 (11th Cir.1982)). See also Panola
Land Buying Ass'n v. Clark, 844 F.2d 1506, 1509 (11th Cir.1988) (citing Diaz
v. Southern Drilling Corp., 427 F.2d 1118, 1124 (5th Cir.), cert. denied sub
nom. Trefina v. U.S., 400 U.S. 878, 91 S.Ct. 118, 27 L.Ed.2d 115 (1970), and
Hobson v. Hansen, 44 F.R.D. 18, 24 (D.D.C.1968)) (interest necessary for
intervention as of right must be a "direct, substantial, legally protectable interest
in the proceedings") (emphasis in original).
21

As the majority opinion briefly notes, it is difficult to perceive appellants'

direct, substantial, and legally protectable interest in the suit between the City
and the United States. At the time of the suit, the appellants already had the
majority of the disputed FBI documents in their possession. They had already
published several articles based on the documents. Neither of the parties to the
lawsuit attempted to retrieve the documents from the appellants or to prevent
the appellants from publishing further articles based on the documents they
possessed. Further, nothing in the lawsuit prevented the appellants from
requesting the documents from the FBI at a later date if necessary.5 In short,
appellants lacked standing to intervene in the district court action. The district
court erred when it granted intervenor status.
2. Appeal

22

Even if the appellants did have standing to intervene, however, this Court
should not have reached the merits of appellants' appeal.

23

In order to establish standing to appeal, an intervenor must show that it has

"suffered an actual or threatened injury," the injury must be "distinct and
palpable," the injury must be "fairly traceable to the challenged action," and

"relief ... must be likely to follow from a favorable decision." Boeing v. Comm'r
of Patents and Trademarks, 853 F.2d 878, 880 (Fed.Cir.1988) (citing Allen v.
Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984);
Gladstone, Realtors v. Village of Bellwood, 441 U.S. 91, 99, 99 S.Ct. 1601,
1607-08, 60 L.Ed.2d 66 (1979); Simon v. Eastern Kentucky Welfare Rights
Organization, 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976);
Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343
(1975)). Appellants' actual injury in the present case is the September 3, 1988
judgment ordering them to return the documents to the government. Because
the government did not seek such relief from the appellants, and because the
appellants were not defendants in the action, the judgment against them is
unauthorized. An unauthorized judgment is clearly a distinct and palpable
injury stemming from the district court action, and is clearly susceptible to
relief. The appellants thus had standing to appeal the judgment against them on
the ground that it is a nullity.
24

This is not, however, the ground on which the appellants appeal. Rather, the
appellants argue that the district court lacked subject matter jurisdiction over
the case because (1) there was no case or controversy, (2) the United States had
no standing or authority to sue, (3) the district court should have abstained from
the decision, and (4) the Rooker-Feldman doctrine precluded district court
review. This amounts to an argument that the district court's judgment against
Napper and the City, both proper party defendants, was erroneous. Appellants
argue that this erroneous judgment prevents them from publishing articles
about the Atlanta Child Murders; thus they have suffered an actual injury likely
to be redressed on appeal.

25

The appellants lack standing to challenge the district court judgment against
Napper and the City for one reason: neither the district court's judgment nor 28
U.S.C.A. Sec. 534 restricts the appellants' ability to publish the disputed
material. The district court held in its order of August 31, 1988 that Napper and
the City should return the disputed documents to the government; it did not
order appellants to do so. Only as a result of a clerical error was judgment
entered against the appellants. Section 534 states only that government
exchanges of criminal records with state and local government entities are
subject to cancellation upon dissemination outside the authorized departments.
There is no provision in the statute for penalties against private parties who
disclose the disseminated information. The appellants thus suffer no injury as a
result of the judgment against Napper and the City; where there is no injury,
there is no standing.

26

Because the appellants lacked standing to challenge the judgment against

Napper and the City, this Court should not have reached the jurisdictional
challenges. Rather, the judgment against the appellants should simply be
vacated on the ground that it is unauthorized and a nullity.
C. ROOKER-FELDMAN DOCTRINE
27

Because the majority chose to address the appellants' challenge to the

jurisdiction of the district court, I feel it necessary to address the appellants'
fourth challenge, which the majority has not discussed. Appellants argue that
because the state court denied the government's motion to intervene in the
original action, the Rooker-Feldman doctrine precludes the district court and
this Court from deciding this case. The Rooker-Feldman doctrine states that a
federal court may not review final state court decisions because such review is
reserved to the Supreme Court under 28 U.S.C.A. Sec. 1257. District of
Columbia Court of Appeals v. Feldman, 460 U.S. 462, 486, 103 S.Ct. 1303,
1316-17, 75 L.Ed.2d 206 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413,
44 S.Ct. 149, 68 L.Ed. 362 (1923). It is clear that this case does not fall within
the confines of the Rooker-Feldman doctrine as thus formulated. The
government brought a new action in the district court to recover its documents
from the City. The government was not a party to the state proceeding; it
cannot and does not appeal that decision. Nor does the government appeal the
state court's denial of its motion to intervene.

28

Appellants argue, however, that this Court's holding in Wood v. Orange

County, 715 F.2d 1543 (11th Cir.1983), cert. denied, 467 U.S. 1210, 104 S.Ct.
2398, 81 L.Ed.2d 355 (1984) requires us to vacate the district court decision.
There is no merit to this argument. Wood began with separate criminal cases in
Florida state court. The defendants in the criminal cases were adjudged
insolvent and were appointed a public defender. The defendants signed
affidavits attesting to their insolvency; these affidavits contained waiver clauses
which informed the defendants that a lien could be impressed against their
property for services rendered by the public defender. The waivers also stated
that the defendants waived notice of any lien proceedings. After the criminal
trials, the court entered liens against both defendants without notice. The
defendants sued in federal court requesting declaratory and injunctive relief
under the due process clause. Wood, 715 F.2d at 1545.

29

The defendants in the federal suit argued that the Rooker-Feldman doctrine
precluded the federal action because the defendant/plaintiffs had the
opportunity to raise their constitutional claims at several stages in the state
proceedings. The Wood court agreed to an extent, holding that Rooker-Feldman
"operates where the plaintiff fails to raise his federal claims in state court."

Wood, 715 F.2d at 1546. The Wood court further held, however, that this rule
applies only "where the plaintiff had a reasonable opportunity to raise his
federal claims in the state proceedings." Id. at 1547. If the plaintiff had no such
reasonable opportunity, then the issue is not "inextricably intertwined" with the
state action and the district court has "original" jurisdiction over it. Id.
30

In the present action, the appellants sued the City in state court to compel
production of the disputed documents. The United States attempted to intervene
to prevent the dissemination of the documents; it was not permitted to do so.
Thus, the government had no opportunity in the state court proceedings to raise
the issue involved in the present federal action: whether the United States is
entitled to the return of the disputed documents under 28 U.S.C.A. Sec. 534.
Because the government did not have a reasonable opportunity to raise this
issue in the state proceeding, the Rooker-Feldman doctrine did not preclude the
district court's decision.

D. CONCLUSION
31

Although I feel that the Court need not have reached the merits of this appeal, I
concur in the result reached under the analysis used by the majority.

See Rule 34-2(b), Rules of the U.S. Court of Appeals for the Eleventh Circuit

**

Honorable George C. Young, Senior U.S. District Judge for the Middle District
of Florida, sitting by designation

28 U.S.C.A. Sec. 534 (1982) states in pertinent part:

(a) The Attorney General shall-(1) acquire, collect, classify, and preserve identification, criminal identification,
crime, and other records;
***
(4) exchange such records and information with, and for the official use of,
authorized officials of the Federal Government, the States, cities, and penal and
other institutions.
(b) The exchange of records and information authorized by subsection (a)(4) of
this section is subject to cancellation if dissemination is made outside the
receiving departments or related agencies.

At the time of the appellants' original suit, O.C.G.A. Sec. 50-18-70 stated:
(a) All state, county, and municipal records, except those which by order of a
court of this state or by law are prohibited from being open to inspection by the
general public, shall be open for a personal inspection of any citizen of this
state at a reasonable time and place; and those in charge of such records shall
not refuse this privilege to any citizen.
(b) The individual in control of such public record or records shall have a
reasonable amount of time to determine whether or not the record or records
requested are subject to access under this article. In no event shall this time
exceed three business days. (Ga.L.1959, p. 88, Sec. 1; Code 1981, Sec. 50-1870; Ga.L.1982, p. 1789, Sec. 1).

The November 10, 1988 order was a ruling on the appellants' motion to stay the
judgment pending appeal. The court denied the motion to stay because the
amended judgment did not mention the appellants

Under Rule 24(a), the court must permit a party to intervene if the party:
claim[s] an interest relating to the property or transaction which is the subject of
the action and the appellant is so situated that the disposition of the action may
as a practical matter impair or impede the applicant's ability to protect that
interest, unless the applicant's interest is adequately represented by existing
parties.
Under Rule 24(b), a court may permit a party to intervene if the applicant's
claim or defense and the main action have a question of law or fact in common.
Whether to allow permissive intervention "is committed to the sound discretion
of the district court and will not be disturbed absent a clear abuse of discretion."
United States v. Dallas County Comm'n, 850 F.2d 1433, 1443 (11th Cir.1988).

As the majority notes, the appellants may encounter difficulty in attempting to

obtain the documents from the FBI, but this issue is not ripe for adjudication at
this time